Limit of the exercise of the right to request Elucidation (No. 94.8.12. 94Da13053)

The court shall supplement the statement of the party when it is contradictory or defective, or when it is impossible to know the purport of the statement, and make it clear, or shall urge the party to prove it only when it is evident that the party concerned is not able to prove it due to negligence or misunderstanding in light of the extent of the lawsuit, and in all cases when there is no proof as to the disputed facts, it is not necessary to urge the party to prove it until it obtains a conviction, and it goes beyond the scope of the right to request a new argument or claim by the court.

Article 126 of the Civil Procedure Act

Supreme Court Decision 92Da3892 delivered on May 22, 1992 (Gong1992, 1978) 91Da35106 delivered on June 9, 1992 (Gong1992, 2116), 92Da9388 delivered on June 26, 1992 (Gong192, 2271)

[Defendant-Appellee] Plaintiff 1 et al.

Defendant 1 and 11 Defendants, et al., Counsel for the defendant-appellant-appellant

Daejeon High Court Decision 93Na1730 delivered on February 1, 1994

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The Plaintiff’s attorney’s ground of appeal is examined.

1. Examining the relevant evidence prepared by the court below in accordance with the records, we affirm the fact that the theory of the lawsuit points out (in particular, the real estate of this case is not the ownership of the deceased non-party 1 or the plaintiff non-party 2 or the non-party 1 who is the non-party 2 who is the deceased non-party 1 or the plaintiff's non-party 2 or the non-party 6 who is the non-party 1's possession of the above real estate for the above clan, around October 10, 1956, the non-party 3, the non-party 4, the non-party 5 who is the non-party 3 and the non-party 6 who is the non-party 3, the head of the plaintiff clan, and the non-party 5 who is the non-party 2, the right to manage the real estate belongs to the non-party 2's possession of the clan, and it is against the rules of experience or the rules of experience as to the transfer registration of forest ownership).

2. If the actual owner of the non-party 6's share in the real estate of this case cannot be deemed to be the above non-party 2, the court below's decision that the plaintiff purchased the right to manage the real estate of this case from the above non-party 2, even if there was an error of law in the supplementary decision of the first preliminary claim, such as the theory of lawsuit, the non-exercise of right to know and the hearing of hearing, which are not affected by the conclusion of the judgment, and therefore, there

3. If the possession of the above real estate by the above non-party 1 was the possession by the owner, the possession of the deceased non-party 7, who is the wife of the above non-party 1, shall also be deemed to be the possession by the new title unless the possession of the above real estate begins. Thus, the court below was just in holding that the second preliminary claim is not erroneous in the misapprehension of legal principles as to the autonomy possession and burden of proof, such as the theory of lawsuit, and the theory that the above non-party 7 occupied the above real estate with the intention to own the above real estate is based on the premise that the above non-party 1 and the non-party 7 found the real estate of this case with his own funds, unlike the facts acknowledged by the court below, and cannot be accepted. If the above non-party 7 cannot be deemed to have occupied the above real estate with his intention to own the above real estate, even if the plaintiff's assertion about the second preliminary claim is recognized, it did not affect the conclusion of the registration of transfer of ownership against the defendants directly.

4. In light of the records, the court below's decision rejecting the plaintiff's third preliminary claim for the same purport is just, and there is no error in the misapprehension of the legal principles as to independence possession and burden of proof, such as theory of lawsuit, and there is no error in the misapprehension of the legal principles as to the plaintiff's third preliminary claim for the same purport. Further, the court below's decision to dismiss the plaintiff's third preliminary claim for the same purport is just, and there is no error in the misapprehension of the legal principles as to the plaintiff's independent possession and burden of proof. In addition, if the plaintiff's statement is inconsistent with the plaintiff's statement or incomplete, or the purport of the statement is unknown, and if it is sufficient to prove that the plaintiff's non-party 7's possession of the above real estate is not obvious due to misunderstanding or misunderstanding, it is not necessary to urge the plaintiff to prove that the plaintiff's possession of the above real estate was not carried out within the limit of 3 years, unless it proves that the plaintiff's non-party 7 did not have any obligation to prove it.

5. The court's invitation of a party to make a new assertion or claim goes beyond the scope of the right of tin and thus, it cannot be accepted that the court below erred in the exercise of the right of tin or the incomplete hearing in the action that did not give the plaintiff an opportunity to file a lawsuit seeking confirmation of the existence of a permanent superficies or right of lease on the real estate in this case.

6. The argument that the lawsuit is in question cannot be accepted because it is merely merely an attack on the judgment of the court below or an independent opinion without any ground on the premise of facts established by the court below and inconsistent with the facts.

7. All of the arguments are without merit, and all of the appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Chang-tae (Presiding Justice)